Levens and Gaisford - [2020] FCCA 810

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEVENS & GAISFORD

[2020] FCCA 810

Catchwords:
FAMILY LAW – Parenting – mother having died in car accident – nine year old boy having four half siblings – two other half-siblings living at home – the three younger half-siblings cared for by the maternal grandparents after the mother’s death – the three half-siblings living at home each having a different father – younger half-sibling moving to live with his father by consent – older half-sibling remaining with maternal grandparents by consent – nine year old boy the subject of the proceeding told as a child that his father did not want him – father not knowing of boy’s existence until he was four years old – father living nine hours’ drive away – father spending limited amount of time with nine year old boy since learning of his existence, but now seeking that child live with him and that he have sole parental responsibility – family consultant particularly concerned about boy’s psychological development and identity formation, in circumstances where he was told his father did not want him – family consultant considering that sibling bonds secondary to parental bond, in circumstances where boy has only one surviving parent and where he was told his father did not want him.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Case cited:
Aldridge v Keaton (2009) 235 FLR 450; (2009) 42 Fam LR 369; (2009) FLC 93-421; [2009] FamCAFC 229

Applicants:

MR LEVENS AND MS LEVENS

Respondent:

MR GAISFORD

File Number:

MLC 13584 of 2018

Judgment of:

Judge Riley

Hearing dates:

16, 17, 18 and 19 March 2020

Date of last submission:

23 March 2020

Delivered at:

Melbourne

Delivered on:

9 April 2020

REPRESENTATION

Counsel for the applicant:

Mr Williams

Solicitors for the applicant:

Morrison and Sawers

Counsel for the respondent:

Mr Mulligan

Solicitors for the respondent:

Thexton Lawyers

Counsel for the independent children’s lawyer:

Mr A. Combes

Solicitors for the independent children’s lawyer:

Medson Legal Pty Ltd

ORDERS

All extant parenting orders in relation to X born in 2010 (“X”) be discharged.
The father, the respondent, have sole parental responsibility for X.
X live with his father commencing at 10am on 24 March 2020.
The father collect X from the home of his maternal grandparents at 10am on 24 March 2020.
Once X relocates to his father’s home:
a.X live with his father;
b.subject to any restrictions imposed as a result of the coronavirus pandemic, X spend time with his maternal grandparents as follows:
i.in each term school holidays after the April 2020 school holidays as agreed, noting that the time X is with the maternal grandparents should coincide as far as possible with the time C is in the care of the maternal grandparents, and failing agreement, from 10.00am on the first Saturday of such school holidays until 5.00pm on the middle Sunday of such school holidays;
ii.in even numbered years, from 5pm on 23 December until 5pm on 15 January;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Levens and Gaisford

Details

AGLC: Levens and Gaisford [2020] FCCA 810
Case: [2020] FCCA 810
Decision Date: 9 April 2020

CaseChat Overview and Summary

In the matter of Levens and Gaisford, heard by Judge Riley, the dispute concerned parenting orders for a child, X, born in 2010. The proceedings involved the father and the maternal grandparents of X.

The court was required to determine a range of issues relating to X's future care and living arrangements, including the discharge of existing parenting orders, the allocation of parental responsibility, where X would live, and the nature and extent of X's time with his maternal grandparents. Further issues included the facilitation of communication between X and his grandparents, the payment of travel costs, and the provision of school information. The court also considered the need for psychological support for X and the father, and imposed restraints on the parties regarding disparaging remarks made in X's presence.

The court ordered the discharge of all extant parenting orders concerning X and granted the father sole parental responsibility. X was to live with his father, commencing on 24 March 2020. Specific arrangements were detailed for X's time with his maternal grandparents, including school holiday periods and annual Christmas and January arrangements, with provisions for communication and travel. The father was ordered to ensure X attended psychological counselling to address relocation issues and past perceptions of abandonment, and the father was also to attend sessions as directed. The court also made orders regarding the payment of travel costs for X to spend time with his grandparents, with a contribution from the grandparents for flights. Further orders included provisions for the maternal grandparents to spend time with X and attend school functions, and a restraint on the maternal grandfather leaving X in the sole care of the maternal grandmother until her mental and neurological health was assessed. Finally, the court ordered the discharge of the independent children's lawyer and dismissed all other extant applications, with particulars of obligations and consequences for contravention set out in an attachment.

Orders

Orders of the court

All extant parenting orders in relation to X born in 2010 (“X”) be discharged.

The father, the respondent, have sole parental responsibility for X.

X live with his father commencing at 10am on 24 March 2020.

The father collect X from the home of his maternal grandparents at 10am on 24 March 2020.

Once X relocates to his father’s home:

a. X live with his father;

b. subject to any restrictions imposed as a result of the coronavirus pandemic, X spend time with his maternal grandparents as follows:

i. in each term school holidays after the April 2020 school holidays as agreed, noting that the time X is with the maternal grandparents should coincide as far as possible with the time C is in the care of the maternal grandparents, and failing agreement, from 10.00am on the first Saturday of such school holidays until 5.00pm on the middle Sunday of such school holidays;

ii. in even numbered years, from 5pm on 23 December until 5pm on 15 January;

iii. in odd numbered years, from 5pm on 14 January until 5pm on 28 January; and

iv. as otherwise agreed in writing between the father and the maternal grandparents;

c. in the event that X flies to Melbourne to spend time with his maternal grandparents, changeover occur at Tullamarine Airport or as otherwise agreed;

d. in the event that X travels by car to spend time with his maternal grandparents, changeover occur at the maternal grandparents’ home or as otherwise agreed;

e. the maternal grandparents may communicate with X by telephone, Skype or other similar communication method at all reasonable times;

f. the maternal grandparents and the father facilitate B and X communicating by telephone, Skype or other similar means at all reasonable times; and

g. the father authorise X’s school to provide to the maternal grandparents, at the father’s expense, copies of any school reports, school notices and school photograph order forms in relation to X.

As soon as is practicable, the father ensure that X attends upon a psychologist to address issues relating to his relocation, his mother’s death, and his perception that his father abandoned him for the first four years of his life, and the father attend sessions with the psychologist as the psychologist directs.

Subject to order 9, all costs of travel for X to spend time with the maternal grandparents be paid for by the father.

The father provide to the maternal grandparents all itineraries for X’s travel between their respective homes not less than two weeks prior to the scheduled travel.

Within seven days of the father providing the itinerary to the maternal grandparents, the maternal grandparents pay $50 per flight to the father as a contribution to the costs of X’s air travel.

10.

Upon X relocating to his father’s home, the maternal grandparents be at liberty to spend time with X as agreed between the parties in New South Wales and attend X’s school for the purpose of attending any function or activity that would normally be attended by parents.

11.

Until the maternal grandmother obtains a report from appropriately qualified specialists that, in view of her mental and neurological health, X is not at risk being in her care, the maternal grandfather be restrained from leaving X in his maternal grandmother’s sole care at any time.

12.

The parties be at liberty to communicate with each other by text and/or email in relation to the care and welfare of X and the parties each facilitate such communication.

13.

Each of the maternal grandparents and the father keep each other advised of:

a. any significant illness or injury suffered by or affecting X;

b. their respective residential addresses, telephone numbers and email addresses; and

c. any hospital admission of either of the maternal grandparents or the father within twelve hours of such admission, via text message.

14.

The father and his servants and agents be restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the maternal grandparents or any member of their household in the presence or hearing of X and from permitting any other person to do so.

15.

The maternal grandparents and their servants and agents be restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the father or any member of his household in the presence or hearing of X and from permitting any other person to do so.

16.

The order appointing the independent children’s lawyer be discharged.

17.

All extant applications in relation to X be otherwise dismissed.

18.

Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

NOTATIONS

A. Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

B. Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.